CRPF SOLDIER MISSING FOR MORE THAN 7 YEARS CONSIDERED TO BE DEAD

In the case of Madhu Devi v. Union of India, decided by the J&K High Court, the petitioner, Madhu Devi, through a Writ of Certiorari pleaded to quash the order declaring her missing husband as a ‘deserter’ and pleaded to declare him as dead under Section 108 of the Indian Evidence Act which states that the burden to prove that a person is alive who has not been heard of for 7 years is on the person who he/ she naturally communicated with; but if such persons have not heard then the burden shifts/ is upon the person who affirms it. The petitioner’s husband, namely Asha Ram, was serving as a head Constable in 16 Battalion CRPF and was last posted at Civil Lines Mathura, UP. Mr. Asha Ram was putting up a residential quarter at the Group Centre of the said Battalion at Ban Talab, Jammu. In June 2010, the petitioner got a phone call from the Company Commander of the Unit informing her that her husband had gone to fetch some vegetables, however he did not return back. The petitioner, individually, and the respondents tried to reach CRPF but no trace was found. The respondents halted the salary of the petitioner and the whole burden of rearing the children was put on Madhu Devi. The petitioner contended that she was out of touch with her husband for 7 years and the respondents had dismissed him from job stating him to be a “deserter”. Desertion or aiding in desertion is an offence as per Section 38 of the Army Act, 1950. However, the single bench led by Justice Sanjay Dhar ordered that a Central Reserve Police Force (CRPF) soldier missing for the last seven years can be presumed to be dead in terms of Section 108 of the Indian Evidence Act and hence, the Court directed the CRPF authorities to give all consequential benefits to the family of the missing person. The Court opined that the petitioner’s husband cannot be stated as a deserter as the word ‘desert’ would mean– “illegally running away from military service. A person, whose whereabouts are unknown and who has not been heard of for the last more than 10 years, cannot be stated to have illegally run away from his service.” The petitioner’s husband is presumed to be dead because his whereabouts have remained unknown for more than seven years, as such, he cannot be held guilty of having deserted the service of CRPF. The Court ordered the respondents to release all service/pensionary benefits towards the petitioner’s husband as the respondents were wrong in terming Mr.Asha Ram a deserter just on the benefit of doubt. Mr. Asha Ram being untraceable nowhere proves that he illegally abstained from his duty. In the case of Madhu Devi v. Union of India, the petitioner’s husband being untraceable for 7 years has lost all the civil rights and thus he can be considered to have a civil death too. Hence, the judgement can be seen as an application of law in favour of the partners or family of such officers by financially benefiting and supporting them. However, an ambiguous question can arise as to what will happen if and when the person so declared to be dead appears after the date of such declaration?

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